Legally Speaking-The Legal Basis for Library Video Surveilance

Against the Grain, Aug 2014

By Bryan M. Carson, Bruce Strauch, and Jack G. Montgomery, Published on 08/14/14

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Legally Speaking-The Legal Basis for Library Video Surveilance

Legally Speaking-The Leg al Basis for Librar y Video Sur veilance Bryan M. Carson <> 0 2 3 Western Kentucky University 0 2 3 0 2 3 Jack G. Montgomery 0 2 3 0 Western Kentucky University , USA 1 11067 , Bowling Green, Kentucky 42101-1067; Phone: 270-745-5007; Fax: 270-745-2275) , USA 2 Bruce Strauch , The Citadel 3 by Bryan M. Carson , J.D., M.I.L.S. (Associate Professor , Coordinator of Reference and Instructional Services, Associated Faculty - Library Media Education Program, Western Kentucky University Libraries, 1906 College Heights Blvd , USA Follow this and additional works at: https://docs.lib.purdue.edu/atg Part of the Library and Information Science Commons Recommended Citation Section Editors: Legally Speaking — The Legal Basis for Library Video Surveillance Ssee ourselves. We often take our history, ometimes it takes an outsider to make us culture, and traditions for granted. In many instances, it is only when an outsider asks for clarification that we realize how much we have subconsciously assumed about ourselves and about our way of life. This point was brought home to me recently by one of my colleagues at Western Kentucky University. In 2009, Haiwang Yuan, the library’s Webmaster, was selected by the Institute for Museum and Library Services to participate in a panel of U.S. librarians helping to train library science students and practitioners in China. After responding to audience questions, Haiwang sent me the following email: Q. What’s the legal basis for monitoring the library with security cameras such as those installed [at Western Kentucky University]? We don’t agree even among the speakers ourselves here, not to speak of the audience. This is one of those basic questions that we almost never think about. The short answer is that if a person is in a public or semi-public place such as a library, his or her movements are not subject to a reasonable expectation of privacy. A library employee doesn’t need a search warrant if he or she observes someone stealing a book. There is not a reasonable expectation of privacy in the person’s movements. An employee or police officer could follow a library patron around the library to see if he or she is stealing books, but this is not practical to do all the time. The security camera is simply a technologically enhanced version of following a person around. As Americans, we tend to take this for granted. Every store has a security system. Many cities have mounted cameras to catch drivers who run stoplights. And, of course, many libraries use video surveillance. But what is the actual legal basis for this practice? Where does it come from, and why is it legal? The answer to the question is much more difficult than it would appear, because so much of the answer depends upon an assumed understanding of the Anglo-American Legal System. There are a number of different legal systems in place in the world, but most countries fall either into one of two categories. One is called the “Common Law” or “Anglo-American” system, and the other main type is called the “Civil Law” system. In the Civil Law system, laws that are passed are very specific and very detailed. A judge can only enforce what is actually found within the actual language of the statute. He or she has no power to interpret or to “apply” the statute to specific situations. The Civil Law system involves positive prescriptions and negative proscriptions, all spelled out very specifically. In a Civil Law system, the legislature could specifically grant stores and libraries the right to use video surveillance. This would be a prescriptive use of legal power. A proscriptive use would be a law making it illegal to use video surveillance in public. In the U.S. legal system, however, case law and the judiciary are as important as statutes and regulations. However, the Common Law or Anglo-American system is very different. Laws are much less specific in their language. While many laws are still prescriptive or proscriptive, there is also a great deal of latitude in between with room for interpretation. In the early centuries of the Common Law system, judges made all laws; that is why it is called “common” law (as opposed to legislative law). The idea of parliaments, legislatures, or congress passing a statue was an innovation. In fact, many of the statutes have now codified the original Common Law rules. The power of judges to create rules was further constrained in the U.S. by the language of the Constitution. Indeed, the reasoning involved in passing statutes is very different due to the enhanced role of the common law judiciary.1 However, modern Anglo-American judges still retain the superior power of interpreting the statutes, or in the U.S. of declaring a statute unconstitutional. In contrast, it is very rare for a statute to be found unconstitutional in Civil Law systems. Often Civil Law countries have special constitutional courts that can adjudicate these kinds of cases. In the o (...truncated)


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Bryan M. Carson, Bruce Strauch, Jack G. Montgomery. Legally Speaking-The Legal Basis for Library Video Surveilance, Against the Grain, 2014, Volume 22, Issue 5,